Ottawa back to drawing board after failing to disclose evidence
New hearing ordered for immigrant
• A federal judge has ordered the government to reassess a man's claim for Canadian residency after it failed to disclose to him the crucial evidence it relied on to deem him inadmissible to the country because he had worked for a Chinese military spy agency.
Federal Court judge Allyson Whyte Nowak published a ruling criticizing Immigration, Refugees and Citizenship Canada (IRCC) for how it handled the file of Chinese resident and permanent residency applicant Hong Cheng Zhao.
In 2022, an IRCC immigration officer sent a letter to Hong Cheng Zhao outlining the evidence backing the belief that the Chinese citizen was inadmissible to Canada because had been a member of a Chinese organization that likely had committed or currently conducts espionage against Canada or the country's interests.
The immigration officer reached that conclusion because he studied “computer and communication” between 1988 and 1992 at China's military university, the People's Liberation Army (PLA) Information Engineering University.
In July 1992, the ruling says, he served in China's primary signals intelligence collection and analysis agency, known as the 3/PLA.
In response to the letter, Hong Cheng Zhao admitted that his unit's main task at the time was to “listen to the shortwave radio communications of the military forces of the surrounding countries," though he said his role was simply basic maintenance and repair of electronic equipment.
He also denied that the “gathering of intelligence by the 3/PLA constituted espionage and argued that there was no evidence that the 3/PLA had any offensive mission against Canada during the time that (he) was a member.”
Ultimately, the immigration officer was unconvinced by Hong Cheng Zhao's reply and deemed him inadmissible because his work “knowingly participated and furthered” the goals of the 3/PLA, which included espionage either against Canada or contrary to Canada's interests.
But in her ruling released on Friday, Whyte Nowak says IRCC made a fundamental mistake that didn't allow the applicant to provide a fulsome defence in response to the government's concerns.
That's because the immigration officer failed to provide Hong Cheng Zhao with a 450-page report titled “The PLA as an Organization v. 2.0” on which the government relied to prove that the 3/PLA conducted offensive espionage operations against countries like Canada during the years Hong Cheng Zhao worked there.
The judge found that the officer relied heavily on the report to conclude that “3/PLA had been conducting espionage continuously since the 1930s” and that 3/LPA “was involved in signals intelligence during applicant's tenure with the 3/PLA and continues to this day."
Hong Cheng Zhao rejected the report's findings, and the judge found that none of the documents the government did disclose to Hong Cheng Zhao supported IRCC'S conclusion that 3/PLA spied against Canada or its interests during the period Hong Cheng Zhao worked there.
By failing to disclose the document to Hong Cheng Zhao, IRCC prevented him from responding meaningfully to the government's concerns about his previous employment and denying him procedural fairness, the judge ruled.
“This meant that (Hong Cheng Zhao) was denied the opportunity to address the evidence supporting one of the officer's key findings,” and that he “was unable to correct the prejudicial information figuring in the extrinsic document that the officer heavily relied upon,” the judge wrote.
Whyte Nowak quashed the government's decision and ordered the case be sent to a different immigration officer for reassessment.
IRCC and Hong Cheng Zhao's lawyer, Lorne Waldman, did not respond to a request for comment by deadline.
In an interview, veteran immigration lawyer Stéphane Handfield (who was not involved in this case) said it appeared suspiciously like the immigration officer intentionally withheld the document as opposed to an honest mistake.
“In some cases, unfortunately, I see that (IRCC) voluntarily omits to disclose documents and it tells itself that if the person doesn't contest, then its decision will stand. Thankfully in this case, the safety net that is the Federal Court worked well and the court intervened appropriately,” he said.
Handfield said he's seeing more and more mistakes, whether intentional or not, by IRCC in his clients' files and that no one ever seems to be held accountable.
With mistakes in cases like Hong Cheng Zhao's, it's “court time, it's costs, it's (resources) that could have been avoided,” he said. “But no one accountable, no one is responsible. At one point, someone has to say `hey, the mistakes you're making in files are nonsensical'.”
WAS DENIED THE OPPORTUNITY TO ADDRESS THE EVIDENCE.